The Supreme Judicial Court of Maine has vacated a jury verdict in the amount of $400,000 against the Maine Department of Transportation in an opinion finely parsing between what testimony an expert witness could and could not give. In Tolliver v. Department of Transportation (MDOT), 2008 WL 2025325 (ME. 2008), the Court was presented with the following factual scenario:

In the early morning of June 20, 2004, Caroline M. Knight was driving when she struck Lucas E. Tolliver, a pedestrian. The portion of Route 302 where the accident occurred was under construction by the MDOT and had recently been repaved. The only markings on the road were yellow reflective markers delineating the center of the road, and there were no white edge lines separating the travel lanes from the breakdown lanes. After hitting Lucas, Knight drove away and did not call 911 or notify any other emergency service. Lucas sustained serious bodily injuries as a result of the accident, including a brain injury. Thereafter, Robert L. Tolliver, as sole guardian and conservator for his son Lucas, filed a complaint alleging negligence on the part of the MDOT and Knight, with the claim against the MDOT alleging that the MDOT had been negligent in failing to stripe Route 302 in a timely fashion, and in failing to maintain safe conditions on Route 302 through the use of temporary edge line markings. After trial, a jury awarded Tolliver $400,000 in damages against the MDOT

Now, there are a lot other facts and issues in the case relating, inter alia, to Knight's alleged intoxication, but I want to focus on one issue, which is the expert testimony of Laurent Lavigne, who provided the central testimony relating to causation. Lavigne was designated as an expert witness by Tolliver, and testified that he was currently working as a road construction consultant. Lavigne testified that he

-had a degree in civil engineering with a major in transportation;

-had previously worked for a paving company that performed road construction in Maine, including paving and striping activities;

-had worked on numerous highway construction projects, many of which involved striping and paving;

-(in connection with his company) was the MDOT subcontractor responsible for striping on some state road projects,

After Lavigne had testified to his experience working on highway construction projects in general, and specifically as an MDOT subcontractor, Tolliver asked Lavigne if, "based upon [his] training, education, experience and [his] examination of the site conditions at the scene of the accident,” he had “an opinion as to whether or not the failure of [MDOT] to stripe the fog line or sideline prior to the accident on June 20th was a substantial contributing factor in causing the accident." After MDOT's objection was overruled, Lavigne stated that he believed the lack of an edge line would be confusing to drivers and pedestrians in general and then stated that he believed the lack of an edge line was "a substantial contributor to the accident."

On appeal, the MDOT contended that Lavigne was not qualified to testify, inter alia, that the lack of an edge line was a substantial contributing factor to the accident. The Supreme Judicial Court of Maine agreed, finding that Lavigne was a road construction expert and not an accident reconstructionist; it thus concluded that "Lavigne's training and experience may have permitted him to opine that the lack of an edge line created an unsafe condition that was a possible cause of the accident, but not that it was a proximate cause of the accident. The mere possibility of causation is not enough to establish proximate cause, or, in Lavigne's words, "substantial contribut[ion]." The Court thus found that because there was no evidence of proximate causation, the MDOT was entitled to judgment as a matter of law and vacated the judgment.

Now, in fairness to the Supreme Judicial Court of Maine, there were other issues with Lavigne's testimony, such as the fact that he only visited the accident scene once and had only basic knowledge of the area where the accident occurred. Putting those issues aside, though, does the Court's distinction make sense in that, ostensibly, and accident reocnstructionist could testify about proximate causation, but a road construction expert could only testify about possible causation? I don't think so.

"Proximate cause is a legal term representing the common-sense notion that a closer causal connection should be required for liability than an act being the cause in-fact of an injury. Whether defendants' acts are the proximate cause of an injury depends upon whether the injury was of a type that a reasonable person would see as a likely result of their conduct." Webb v. Amato, 210 F.Supp.2d 1015, 1016 (N.D. Ill. 2002). Now, I'm no expert in the work of accident reocnstructionists, but it seems to me that they use crime scene evidence to paint a picture of how an accident occurred, which seems highly relevant to help decide whose story of an accident is true, but which doesn't seem especially relevant in establishing whether a reasonable person should have expected that the accident would occur (e.g., whether the MDOT should have known that the lack of an edge line would likely cause an accident).

So, who would I want providing that testimony? I would imagine that my first choice would be a road construction consultant, and preferably one who had worked in the state where the accident occurred, who had done the type of work involved in the accident (striping), and who had done work for one of the parties involved in the accident. Lavigne filled all three bills, and it seems very strange to me that the Supreme Judicial Court of Maine nonetheless found that he could not render expert opinion testimony on proximate causation. What do readers think?

Is a party's religion fair game in a courtroom? That's the question raised by a current deportation case in New Jersey, with United States government attorneys being accused of putting Islam on trial along with Imam Mohammed Qatanani. That question is part of a broader trial, which will determine whether the 44-year-old Palestinian-born spiritual leader should be expelled from the United States to Jordan for having failed to mention in his application for permanent residency here that he was arrested and held by the Israeli military for three months in 1993.

Defense witnesses characterized Qatanani as a man of peace dedicated to interfaith dialogue and to improving social conditions in Paterson, a gritty, post-industrial city of 150,000. They pointed out that Qatanani cooperated with local law enforcement officials to help prevent any upsurge of Islamic violence in the city, whose large Muslim immigrant community is predominantly Palestinian. Defense witnesses with expertise on Israel’s administrative detention policies also testified that the Israeli military court system routinely allowed authorities to hold prisoners for months without charges or access to a lawyer. Additionally, they claimed that Israel countenanced techniques that Human Rights Watch characterizes as torture, some of which were subsequently repudiated by the Israeli Supreme Court.

The trial, however, took on a decidedly religious complexion during questioning of a character witness, Rabbi David Senter of Temple Beth Shalom in Pompton Lakes. The lead government attorney, Alan Wolf, read a passage from the Koran asserting that God will cause unbelievers and hypocrites to "increase in illness and…be swiftly punished on the Day of Judgment." Gesturing toward Qatanani, Wolf asked Senter, whose testimony emphasized Qatanani’s commitment to interfaith outreach, whether a person who believed in such language could really be the moderate figure Senter believed him to be. Senter replied that he considered it wrong to quote the Koran out of context to impugn Qatanani.

At the opening of the third day of the trial, Claudia Slovinsky, an attorney representing Qatanani, demanded an apology from Wolf "unless the government is willing to admit that Islam is on trial here." Immigration Judge Alberto Riefkohl responded, "I don’t think [Wolf’s question about the Koran] was proper, but [also] do not believe it was intended with malice." I would also argue that the question was inadmissible.

Now, it's important to note that the Federal Rules of Evidence do not apply in deportation proceedings; instead, evidence is admissible provided that it does not violate the alien's right to due process of law. Zerri v. Gonzales, 471 F.3d 342, 346 (2nd Cir. 2006). However, using these Rules as a guide, I would argue that using religion as character evidence violated Qatanani's right to due process of law.

Let's start the analysis with Federal Rule of Evidence 610, which states that "[e]vidence of the beliefs or opinions of a witness on matters of religion is not admissible for the purpose of showing that by reason of their nature the witness' credibility is impaired or enhanced." Now, this Rule would apply if Qatanani testified and the prosecution were trying to use his religion as evidence that jurors should not trust his testimony on the witness stand. Here, however, the prosecution apparently used the Koran passage to prove that Qatanani was an extremist/hatemongerer and not a moderate figure.

Thus, Rule 610 was not implicated, but the proscription of character evidence was. Assuming that that defense witnesses' testimony about Qatanani’s commitment to interfaith outreach and peaceableness injected his character as an issue into the trial, but even if it did, the prosecution could only challenge his character through reputation and/or opinion testimony under Federal Rule of Evidence 405(a). Evidence about Qatanani’s religion would not be admissible under this Rule.

To see why, let's look at the opinion of the Third Circuit in Government of the Virgin Islands v. Petersen, 553 F.2d 324 (3rd CIr. 1977). There, a Rastafarian man appealed his conviction for two counts of second degree murder by claiming that the trial court erred by precluding him from presenting testimony that Rastafarians believe in nonviolence. The Third Circuit rejected this argument, finding that,

-"A person may or may not act in accordance with a professed belief; it is the observation of the defendant's behavior over a length of time which is the recognized basis for both reputation and opinion testimony....This longstanding limitation reflects an accommodation between logical relevance on the one hand and the desire to avoid prejudice, confusion, surprise and consumption of trial time on the other. We believe that the appropriate means to elicit opinion testimony under the rule is to inquire directly as to the witness' opinion concerning the relevant character trait of the accused. The district court did not err in refusing to admit the proffered testimony."

So, this analysis seems to indicate that the question was impermissible under the Federal Rules of Evidence, but did it violate Qatanani's right to due process of law? I would argue that the answer is yes based upon another passage in the Third Circuit's opinion. In addition to finding that the proposed Rastafarian testimony was impermissible character evidence, it also found that it was not legally relevant. I agree and would argue that evidence about a person's religion (or lack thereof) to prove that the person is violent/nonviolent/honest/untrustworthy/etc. denies that person due process of law because that person's religion, and not that person, is being put on trial.

"In 1982, Alton Logan was convicted of first degree murder based upon being the trigger man in a robbery gone wrong at a Chicagoland McDonald's. What the jury who convicted Logan did not hear was that another man, Andrew Wilson, confessed to the crime Logan allegedly committed. The problem was that Wilson confessed to his attorneys, public defenders Dale Coventry and Jamie Kunz, who confirmed with the relevant authorities that they were bound by the rules of professional responsibility not to disclose their client's confession. Coventry and Kunz did prepare an affidavit detailing Wilson's guilt and in fact planned to come forward if Logan were given the death penalty. Ironically, two holdouts on the jury seemingly spared Logan's life by voting against capital punishment, but in fact dealt him the same fate that would befall the affidavit, being locked up (Logan in a prison cell; the affidavit in a lock box). Pained by pangs of guilt, the public defenders convinced Wilson to allow them to reveal his guilt after his death, resulting in Logan's eventual release from prison twenty-six years after he entered.

How does such an injustice occur? Until recently, the Model Rules of Professional Responsibility prohibited an attorney from disclosing client information relating to a completed crime in which the attorney's services were not used, meaning that an attorney could not disclose that his client committed a crime for which another man was charged or convicted. And while the ABA amended Model Rule 1.6(b)(1) in 2002 to permit attorneys to reveal client information to prevent reasonably certain death or substantial bodily harm, the few commentators to address the issue have curtly concluded that this exception would still not apply to the wrongful incarceration scenario presented by the preceding example. Conversely, Massachusetts Rule of Professional Responsibility 1.6(b)(1) permits attorneys to disclose client information to, inter alia, prevent the wrongful execution or incarceration of another. This article argues that the 25 states which have adopted some form of amended Model Rule 1.6(b)(1) can and should read a similar wrongful incarceration/execution exception into their existing Rules while the remaining 24 states (and the District of Columbia) which have not adopted some form of amended Model Rule 1.6(b)(1) should create such an exception and can do so while causing less violence to the rationales behind attorney-client confidentiality than existing exceptions."

So, what do readers think? Does such an exception make sense? Or would such an exception restrict the free flow of information between client and attorney and/or undermine other societal goals? As I post into the conclusion to the essay, my firm hope is that while men such as Alton Logan and Lee Wayne Hunt have endured inordinate suffering, perhaps we can derive a quantum of solace from their plights if their cases lead to the recognition of the necessity of a wrongful incarceration/execution exception to attorney-client confidentiality.

I have received a few e-mails asking about how the R. Kelly sex video, which has been described as, "at best, a copy of a copy of a copy" was admissible in his child pornography trial. Well, let's take it through the legal analysis. Illinois does not actually have a codified rule of evidence (although incoming Illinois Supreme Court Chief Justice Thomas R. Fitzgerald has indicated that he is going to "try to do something with possibly codifying the law of evidence in Illinois"), but the evidentiary rules its courts have applied pretty closely mirror the Federal Rules of Evidence. And according to the Best Evidence Rule (Federal Rule of Evidence 1002), "[t]o prove the content of a writing, recording, or photograph, the original writing, recording, or photograph is required, except as otherwise provided in these rules or by Act of Congress."

Here, the prosecution in the R. Kelly is indeed seeking to prove the contents of a tape recording and thus had to produce the original, unless the exceptions in Rules 1003 or 1004 applied. Under Federal Rule of Evidence 1004, a party seeking to prove the contents of a recording can do so through any form of secondary evidence (such as a copy) if that party establishes one of three exceptions or establishes that the recoding is collateral to the issues at trial. Clearly the recording in the R. Kelly case is central to the prosecution's case and not "collateral," meaning that the prosecution needed to establish one of three exceptions:

-(1) Originals lost or destroyed. All originals are lost or have been destroyed, unless the proponent lost or destroyed them in bad faith; or

-(2) Original not obtainable. No original can be obtained by any available judicial process or procedure; or

-(3) Original in possession of opponent. At a time when an original was under the control of the party against whom offered, that party was put on notice, by the pleadings or otherwise, that the contents would be a subject of proof at the hearing, and that party does not produce the original at the hearing.

Now, the pre-trial hearings in the R. Kelly case were closed, so I don't know whether the prosecution was able to establish any of these 3 factors. Even if it could not, however, the prosecution still could have introduced the "copy of a copy of a copy" under Federal Rule of Evidence 1003, which indicates that a mechanically produced "duplicate is admissible to the same extent as an original unless (1) a genuine question is raised as to the authenticity of the original or (2) in the circumstances it would be unfair to admit the duplicate in lieu of the original. Now, some of you may seize upon this first exception and think that R. Kelly's attorneys could have raised a genuine question as to authenticity.

(Indeed, looking at what's happened in the trial so far, his lawyers seem to be arguing that the man in the video is computer generated, that the man can't be R. Kelly because he doesn't have a mole, and the victim's head might have been digitally superimposed on a more mature woman's body. Indeed, defense counsel asked the alleged victim's former best friend, who identified her former friend as the girl in the video, if it was possible her former friend's head had been superimposed onto a more mature body. The former friend indicated that this was entirely possible, but then defense counsel made the strange choice to ask her whether the superimposition of a man's head on an infant's body in the Wayans brothers' 2006 movie "Little Man" looked pretty real. The question, which seems to me akin to asking whether the Wayans brothers actually looked like Caucasian women in their 2004 movie "White Chicks," drew a "Not really" response from the witness and guffaws from the courtroom).

The problem with this, however, is one that I addressed in my article, Even Better than the Real Thing, which will be published in the Maryland Law Review later this year and which is accessible now on SSRN if you sign up for a free account (SSRN link). And that problem is that courts almost never find genuine questions raised under Rule 1003(1). In the article, I argue that such a "conservative" application of this exception goes against its legislative history and plain language and that it makes little sense in a world where nearly anyone can fairly quickly create a fairly convincing forgery or digitally altered copy. But as things stand, Federal Rule of Evidence 1003 is basically a judicial rubber stamp, allowing for the admission of almost anything which the proponent claims is a mechanically produced duplicate.

A ruling by a City Court judge in Tucson could affect every alcohol breath test conducted in Arizona since December 1, 2006. That was the date when Arizona adopted the Intoxilyzer 8000 machine made by CMI. Apparently, defense attorneys in 49 DUI cases before Judge Thomas Berning had asked for the Intoxilyzer 8000's source code used to create the machine's software. In response, CMI agreed to make the source code available as long as defense attorneys agreed not to reveal it publicly, which defense attorneys agreed to. According to a ruling by Judge Berning late last week, however, "Despite this, neither the state nor CMI has released the source code." Instead, according to Berning, CMI came back with a counteroffer with "more onerous terms" that defense attorneys said were ethically problematic."

Unsatisfied by CMI's bait and switch, Judge Berning tossed out the alcohol breath tests from the 49 DUI cases. Apparently, there are also 50 to 70 pending cases before other judges who were waiting for Berning's ruling and now presumably will do the same; judges statewide might also follow suit, but everything will likely be put on hold until the prosecutors proceed with an appeal of the ruling. For instance, Sgt. Mark Robinson, a police spokesman, said the department is aware of Berning's ruling and will wait for the results of the appeal to decide whether to continue using the Intoxilyzer 8000.

So, why did Judge Berning rule in this manner? Well, according to several opinions by the Supreme Court of Arizona, "[u]nder Rules [of Evidence] 702, 703, and 403, expert testimony must (1) come from a qualified expert, (2) be reliable, (3) aid the triers of fact in evaluating and understanding matters not within their common experience, and (4) have probative value that outweighs its prejudicial effect." E.g., State v. Lee, 944 P.2d 1222, 1227 (Ariz. 1997). Presumably, CMI failing to release its source made it impossible to determine whether Intoxilyzer 8000 results were reliable, making the test inadmissible under factor 2.

The Supreme Court of South Carolina's recent opinion in Shumpert v. State, 2008 WL 2019129 (S.C. 2008), reveals that South Carolina is among those states where evidence of racial prejudice during jury deliberations is admissible post-trial, despite Rule of Evidence 606(b). Shumpert itself is a fairly typical case by Rule 606(b) standards, with Tyrone Shumpert unsuccessfully attempting to appeal his convictions on armed robbery and conspiracy charges based upon a juror's affidavit. That juror's affidavit indicated in relevant part:

"I recall it being discussed in the jury room that if [Petitioner] wasn't guilty [ ] he would have taken the stand and informed us....There were a couple of people at least, maybe more, that made these statements. I firmly believe that these comments weighed importantly in the jury deciding to convict [Petitioner]. The tall skinny white lady who kept wanting to talk to [the trial court] seemed very concerned by this and I believe it played a big part in her decisions. She was very confused about it all. Also the preacher's wife, I can't recall her name, was very unsure about it. I don't recall anybody in the jury room mentioning the judge telling us not to consider that....If I had it to do again, it would have been nine to three because I think I let those comments about him not testifying swing my vote. Deep down inside I think we made a wrong decision and for the wrong reason-basically for the comments that were made in that room about him not getting up to deny it. I also believe that we made those ladies change their vote because of that."

The Supreme Court of South Carolina found that this affidavit was inadmissible under South Carolina Rule of Evidence 606(b), which precludes jurors from impeaching their verdicts after trial unless deliberations were tainted by extraneous prejudicial information (e.g., inadmissible evidence reaching the jury room) or improper outside influence (e.g., threats by a party's friends/family). Thus, jurors cannot impeach their verdicts based upon anything internal to the jury deliberation process, such as improperly drawing a negative inference based upon a criminal defendant choosing not to testify, which is why the juror's affidavit was inadmissible.

In reaching this conclusion, the Supreme Court of South Carolina contrasted its previous opinion in State v. Hunter, 463 S.E.2d 314 (S.C. 1995). In Hunter, Roosevelt Hunter, an African-American man, was convicted of kidnapping and armed robbery. He appealed these convictions based upon the proffered testimony of the only black juror, Margaret Richardson, who indicated, inter alia, that "a juror named Christine...used the word 'n*****' when referring to some testimony given at the trial. At trial, one witness quoted someone else as having said, 'We'll let the black boys work this weekend.' During deliberations, Christine misquoted this witness, saying, 'Let the n****** work.' After she said it, she caught herself, covered her mouth with her hand and said 'Oop[s].'"

In finding this testimony admissible, the Supreme Court of South Carolina cited the general proscription of South Carolina Rule of Evidence 606(b), but then found that "allegations of racial prejudice involve principles of fundamental fairness...If a juror claims prejudice played a role in determining the guilt or innocence of a defendant, investigation into the matter is necessary. To hold otherwise would violate 'the plainest principles of justice.'" South Carolina courts are among those courts which have held that juror testimony about racial prejudice is admissible based upon the Fourteenth Amendment. Conversely, some courts hold that juror testimony about racial or other prejudice is per se inadmissible. I fall into the former camp and think that any societal interests in not exposing the deliberation process to public scrutiny is outweighed by the litigant's need for a fair trial.

(It should be noted that while the court in Hunter found the juror's testimony admissible, it still affirmed Hunter's convictions, in what I would call a "questionable" decision. According to the court:

"The use of the word 'n*****' by a juror was highly improper. However, she was not referring to Richardson or Hunter when she made the statement, and she was instantly aware of the inappropriateness of her words, as shown by the immediate covering of her mouth. There is no evidence other jurors agreed with her sentiments, nor is there evidence any other remarks were made.")

Earlier, I wrote about how, pursuant to landmark new rules by the Supreme Court of Florida, (a) judges in civil cases must allow jurors to submit questions for witnesses, and (b) judges in criminal cases have the discretion to allow jurors to pose questions for witnesses. I concluded that post by musing, "I think that with proper educational initiatives, regular application of the rules, and proper oversight, the Florida system might result in a more proactive jury and serve as a model for other states. I will certainly be looking forward to the result." Well, the first results are in, and let's go to the scorecards.

First, let's look at how the process has worked, at least in De Furia's courtroom. To prevent questions that are not allowed under court rules, De Furia asks jurors to submit their questions to him in writing. Then, after the attorneys have finished questioning each witness, De Furia sends the witness and the jurors out of the courtroom. Both attorneys then have the chance to object to each question, and, if they do not (or if the objections are overruled), the jury and witness are brought back into the courtroom and the questions are asked by De Furia in open court.

An article on the new rules mentions 2 cases where juror questioning played a large role. In one case, it helped the prosecution. During a four-day trial involving a pool construction firm owner accused of misappropriating money, jurors submitted 42 questions. According to jury foreman Charlie Fridley, those questions became the turning points in deliberations in the jury room, with two or three of the jurors deciding that the defendant was guilty based on the questions they had asked and the answers that didn't make any sense.

In another case, juror questioning helped defense counsel. In a home-invasion robbery trial, jurors had questions about the testimony placing the defendant at the scene of the crime. Defense counsel claims that 20 questions asked by jurors during trial gave him insight into how to attack the state's case when he made his closing argument, resulting in the defendant's acquittal. According to defense counsel, "I think quite frankly it completely made my case....It gave me a really good idea what the jurors were thinking and what their problems were with the case."

So, what do readers think? Do the Florida rules make sense, or should the "experts" be the only ones asking the questions? Does the new process create the potential for making trials too lengthy? Does it give the jurors too much power? Or do the new rules protect against juror apathy and/or confusion? Do they allow for jurors to raise questions that might have been missed by the attorneys? I still maintain that juror apathy/confusion is the biggest concern facing the American legal system, and I think that based upon these early returns, the Florida rules could indeed serve as a model for other states.

Opinions on consecutive days reveal that the Fourth and First Circuits have different interpretations of the "rule of completeness" contained in Federal Rule of Evidence 106. In the May 12, 2008 opinion, United State v. Lentz, 2008 WL 2008920 (4th Cir. 2008), the Fourth Circuit affirmed Jay Lentz's conviction for interstate kidnapping resulting in the death of his ex-wife, Doris Lentz, in violation of the Federal Kidnapping Act. Lentz was initially convicted of this crime back in 2003, but he was later granted a new trial after it was determined that, inter alia, unadmitted, prejudicial information had found its way into the jury room during deliberations. While Lentz was in prison awaiting his re-trial on this kidnapping charge, he allegedly planned a murder-for-hire of witnesses who testified against him and discussed the details of this plan over a prison phone with this attorney. Unbeknownst to Lentz, these conversations were being recorded, and at Lentz' retrial, the prosecution introduced redacted excerpts from these recordings.

These redacted excerpts, which contained incriminatory statements by Lentz, were admissible because they were admissions of a party opponent under Federal Rule of Evidence 801(d)(2)(A) and covered by the crime-fraud exception to the attorney-client privilege. While the Fourth Circuit opinion is unclear, the redacted portions ostensibly did not relate to the murder-for-hire plot and/or consisted of exculpatory or innocuous statements by Lentz, which would not be admissible under Federal Rule of Evidence 801(d)(2)(A). The trial court rejected Lentz's claim that he should be able to introduce the redacted portions simultaneously with the admitted excerpts pursuant to the "rule of completeness" (Federal Rule of Evidence 106), which states that "[w]hen a writing or recorded statement or part thereof is introduced by a party, an adverse party may require the introduction at that time of any other part or any other writing or recorded statement which ought in fairness to be considered contemporaneously with it."

On appeal, the Fourth Circuit affirmed, finding that Federal Rule of Evidence 106 does not render admissible evidence which is otherwise inadmissible under the hearsay rules. In other words, according to the Fourth Circuit and several other courts, Federal Rule of Evidence 106 is merely a rule regarding timing. If, for instance, the plaintiff in a breach of contract action wants to introduce only a portion of the contract, which would be admissible in its entirety, the defendant would be able to get the entire contract seen by the trier of fact at the same time. An example might be a plaintiff introducing only page 6 of a contract and claiming that the term "bad faith" means one thing, which the defendant can rebut by simultaneously introducing the definitions page at the same time. Conversely, when a prosecutor introduces a redacted recording of a defendant making only incriminatory statements, the defendant would not be entitled to introduce the excised portions where he made exculpatory statements because the latter would be inadmissible hearsay that is not transformed into admissible evidence under Federal Rule of Evidence 106.

The opinion of the First Circuit in United States v. Bucci, 2008 WL 2025017 (1st Cir. 2008), from May 13th, comes to the opposite conclusion. Bucci also involved a redacted recording being introduced against a defendant. In Bucci, however, the First Circuit ruled as follows:

"Peculiarly, the Government maintains that the purview of Rule 106 is limited to the order of proof. To the contrary, our case law unambiguously establishes that the rule of completeness may be invoked to facilitate the introduction of otherwise inadmissible evidence."

To me, the First Circuit's opinion takes the day(s). Why? Well, let's look at Federal Rule of Evidence 410. Rule 410 deems nolo contendere pleas, statements made during plea negotiations, etc., inadmissible "against the defendant who made the plea or was a participant in plea discussions" in any civil or criminal proceeding. What is clear from this rule (although some courts disagree) is the defendant is not precluded from admitting such evidence on his behalf, which means, for instance, that a defendant may be able to introduce evidence that he rejected a plea deal to prove that he had an innocent state of mind. In this situation, however, there is an exception to Rule 410's general proscription "in any proceeding wherein another statement made in the course of the same plea or plea discussions has been introduced and the statement ought in fairness be considered contemporaneously with it."

In essence, this means that when, inter alia, the defendant introduces evidence relating to plea discussions, the prosecutor can now admit otherwise inadmissible evidence. So, let's say that Dennis is charged with first degree murder, and he enters into plea discussions with the prosecutor. The prosecutor eventually offers Dennis a plea deal where he will plead guilty to voluntary manslaughter. Dennis rejects the plea deal, telling the prosecutor, "I was at the scene of the shooting and saw Jim shoot the victim." Many courts would allow Dennis to later testify that he rejected the plea deal to show his innocent state of mind. By doing so, however, Dennis triggers the aforementioned exception, which would allow the prosecutor to introduce his otherwise inadmissible statement about being at the crime scene (which might be especially relevant if Dennis claims at trial that he was somewhere else at the time of the shooting).

The Advisory Committee's Note to the 1979 amendment to Federal Rule of Criminal Procedure 11(e)(6) [which is now Rule 11(f) and has been "merged" with Federal Rule of Evidence 410] explains the situation thusly: "This change is necessary so that, when evidence of statements made in the course of or as a consequence of a certain plea or plea discussions are introduced under circumstances not prohibited by this rule (e.g., not 'against' the person who made the plea), other statements relating to the same plea or plea discussions may also be admitted when relevant to the matter at issue. For example, if a defendant upon a motion to dismiss a prosecution on some ground were able to admit certain statements made in aborted plea discussions in his favor, then other relevant statements made in the same plea discussions should be admissible against the defendant in the interest of determining the truth of the matter at issue."

So, what is the relevance of this to Federal Rule of Evidence 106? Well, the next line of the Advisory Committee's Note indicates that "[t]he language of the amendment follows closely that in Fed.R.Evid. 106, as the considerations involved are very similar." Ergo, if the exception to Federal Rule of Evidence 410 allows for the admission of otherwise inadmissible evidence when certain evidence relating to a plea or plea discussions is admitted, Federal Rule of Evidence 106 should also allow for the admission of otherwise admissible evidence (such as redacted portions of recordings) when part of a recording/document/etc. is introduced.